Abstract
The fundamental elements of the international legal system remain subject to debate. Constitutionalism is merely the latest instalment of this continuing conversation on the very nature of international law. In this context certain foundational aspects may be labelled as the system’s ‘constitutional processes’. The primary argument presented in this article is that principles and ‘general principles of law’, two frequently overlooked categories of norms, are particularly useful tools for the enhancement of these constitutional processes. While often conflated, principles and general principles are distinct, performing different roles in the architecture of the international legal system. Renewed attention and debate on the norms beyond treaties and custom is critical for the enhancement of international law’s systemic features. Two broad examples are given in support of this claim. First, general principles of law have the potential to add substance to the notion of an international community and the role of this community in the creation of international norms. Second, the legal framework for the judicial settlement of international disputes can be rendered more robust through the use of principles and general principles of law. While attempting to redesign or reconceptualise the system, constitutionalists have failed to actually engage with the system. Yet, the popularity of the constitutionalism debate presents an opportunity to re-examine the system’s constituent norms and consider their potential to strengthen international law’s constitutional processes.
Highlights
At its core, the debate on the constitutionalisation of international law is nothing new
The primary argument presented in this article is that principles and ‘general principles of law’, two frequently overlooked categories of norms, are useful tools for the enhancement of these constitutional processes
This section will revisit the distinction between rules and principles in international law, and in doing so asserts three main claims: (1) there is a logical conceptual distinction between these two categories of norms; (2) this distinction has been adopted in the international legal system; and (3) ‘general principles of law’ in the sense of Article 38(1)(c) ICJ Statute were designed to be and function as rules
Summary
The debate on the constitutionalisation of international law is nothing new. In ‘taking stock’ of the constitutionalism debate, it is argued that constitutional approaches have not directly facilitated a great deal of change in international law, but are merely the continuation of discussions on the nature of the international legal system. This discussion serves to highlight the dimensions and objectives of constitutionalist accounts, and in doing so demonstrates that the essence of such accounts is the enhancement of international law’s systemic elements and coherence:. This analysis shows that re-examining the issues surrounding these underexplored norms can serve to establish or reinforce key constitutional elements of the modern (and developing) international legal system
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